Michael McDowell (Independent) | Oireachtas source

The legislation would require the candidate to be selected as one of a list of three to be appointed to a vacancy.

I believe that the entire High Court is a shortlist for appointment to the Court of Appeal and under the Constitution the entire High Court and the Court of Appeal are the shortlist for appointment to the Supreme Court. We do not need some further evaluation. We do not need people's health examined. We do not need them to apply and be interviewed by other people. It is a prerogative of Government to make a choice from that shortlist.

The exception to that is where a judge has been directly appointed as a member of the Supreme Court from being a practitioner. That has happened in some cases. There is a serving member of the current Supreme Court who fits into this category. I have no problem with somebody in those circumstances being asked to submit to some form of evaluation or to show some interest. I have no objection to that. However, I am also very clear that if the Government decides, notwithstanding the provisions of this legislation, to simply ask such a person to accept appointment to the Supreme Court, there is no constitutional reason that he or she should not be appointed without involving the commission at all. The Minister and I are at one on this.

The advantage of the commission that I can see is that people, particularly people who are not serving members of the High Court, the Court of Appeal or the Supreme Court, who might be interested in appointment to any of those courts are "encouraged", in inverted commas, to feel that there is an outside agency to which they can make an application. They are encouraged to feel that this agency will look at them fairly and squarely, on a par with judges, and conclude that the Government should consider them when it makes an appointment. Therefore the advantage of the Judicial Appointments Advisory Board as it currently stands and of this commission, however exactly it ends up, is this; people who heretofore have felt they have no particular entréeinto the category of people the Government would even consider appointing have some method of coming to the attention of a body which takes a look at them, says they are good, bad or indifferent and shortlists some of them for consideration for appointment to the Judiciary by the Government.

This is the point. Once someone is a member of the senior Judiciary, he or she is already part of a shortlist as a matter of law. It is wrong to tell people on what is in effect a statutory shortlist of people who can be appointed by the Government without further ado that this does not count for anything. It is wrong to tell them that they must resubmit themselves to a body whose function is to consider for appointment to the courts people who are not judges at all, and they must start again among those candidates. It attacks the spirit of the Constitution.

Going back to the particular, it is very clear to me that section 37 as it currently stands is explained by the fact that an entirely different avenue to appointment to three separate offices, the presidencies of the Supreme Court, the Court of Appeal and the High Court, was contemplated by the Bill as originally drafted. However, Dáil Éireann in its wisdom decided that even those positions should be ones for which there should be no access to a shortlist, say through the judicial appointments commission. That is why we are in a slightly strange position where the Minister is now asking us to accept a section saying that nothing in chapters 1 and 2 of Part 7 will apply to certain senior positions, without definitively coming down on one side or the other on the question of what those senior positions are. He has produced a slightly anomalous arrangement whereby some criteria that look as if they should be applicable to all judicial appointments are effectively disapplied.I do not want to prolong the matter any further.